ORDER :

G.N. Ray, J.

1. This appeal under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 read with Section 379 of the Code of Criminal Procedure is directed against the judgment and order dated 19-10-1992/23-10-1992 passed by the Division Bench of the Gujarat High Court in Criminal Appeal No. 818 of 1983. The High Court, by the impugned judgment, set aside the order of acquittal passed in favour of the appellant in Sessions Case No. 3 of 1983 by the learned Sessions Judge, Bhavnagar on 27-4-1983.

2. The appellant faced the trial on a charge under Section 302 Indian Penal Code for committing the murder of Kamlesh. It is the prosecution case that on 27-10-1982, between 9 and 10 a.m., the deceased Kamlesh was dragged by force into the house of the appellant and the appellant thereafter poured kerosene on the body of the deceased and set her on fire. In the said case, five dying declarations were placed for consideration of the Court, out of which, three were written dying declarations and two were oral. Out of the three written dying declarations, one of the declarations was recorded by an Executive Magistrate who has also deposed in the case.

3. The learned Sessions Judge, inter alia, came to the finding that the dying declarations were inconsistent and there were attempts of improvement and embellishment. Moreover, the possibility of the deceased being tutored by mother could not be ruled out. Accordingly, the trial court did not place any reliance on the dying declarations. The trial court was of the view that the prosecution case could not be established beyond reasonable doubt. Accordingly, the benefit of doubt was given to the appellant and the order of acquittal was passed in his favour. On appeal being preferred by the State of Gujarat, the High Court by the impugned judgment has set aside the said order of acquittal and convicted the accused under Section 302 Indian Penal Code and sentenced him to suffer life imprisonment.

4. Mr. Sushil Kumar, learned Senior Counsel appearing for the appellant has submitted that it appears that the reprehensible conduct of the appellant-accused weighed more in basing the decision of the High Court than considering the intrinsic evidence adduced in the case dispassionately. It was noted in the impugned judgment of the High Court that the accused, after setting the deceased on fire, had left the place and such conduct was held to be indicative of his complicity in the crime. But from the evidence of PW 4 Jilu who was first to arrive at the place of the incident, it is quite clear that the accused was present in the house and it was at his instance that Jilu opened the door of the house of the accused which was bolted from outside. She has deposed that it was the accused who told Jilu that the deceased was burning. Hence the High Court misconceived the facts of the case. Mr Sushil Kumar has further submitted that one of the dying declarations was recorded by PW 8 Balwant Singh who was a police constable. Such a dying declaration has been disbelieved both by the High Court and also by the trial court for cogent reasons. But, unfortunately, even in the said dying declaration, which was a piece of fabrication and forgery, the mother did not hesitate to put her thumb impression. Mr Sushil Kumar has submitted that the trial court has indicated cogent reasons as to why the dying declaration should not be accepted. He has also submitted that it is only when the mother reached the place of the incident, all the dying declarations came into existence in quick succession and the mother was also present when the Executive Magistrate recorded the dying declaration. There is evidence that she was present even before the arrival of the Magistrate in the hospital. In the aforesaid circumstances, the chance of tutoring by the mother cannot be ruled out and the trial court was justified in holding such a view.

5. Mr. Sushil Kumar has submitted that it was extremely unnatural that th